‘Citizen Trump’

Entering stage left — or is it right? — the Supreme Court will be asked to give the final decision on presidential immunity.

House Select Committee via AP
President Trump in the Oval Office on January 6, 2021. House Select Committee via AP

There is no doubt that the District of Columbia Circuit has delivered a powerful opinion denying President Trump immunity from prosecution for the criminal acts alleged in connection with January 6. It stresses that the 45th president is now just “Citizen Trump.” The circuit riders, though, are unconvincing to the ink-stained editorialists on the appeals panels here at the Sun. We’re glad to see Mr. Trump vow to take the case to the Supreme Court. 

The D.C. Circuit finds that “any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.” Mr. Trump reckons that the immunities protect him for his deeds as president, owing not to when they were done but to who he was when he did them. That position, the Circuit frets, would “collapse our system of separated powers by placing the President beyond the reach of all three Branches.”

That strikes us as overwrought. The circuit riders note that the “Framers knew how to explicitly grant criminal immunity in the Constitution, as they did to legislators in the Speech or Debate Clause. Yet they chose not to include a similar provision granting immunity to the President.” Yet the court doesn’t say there are no immunities for the president. Only — at least where Mr. Trump is concerned — that they don’t extend beyond his term in office. 

Yet they acknowledge that the president is sui generis. He “alone composes a branch of government.” The analogy to the protections afforded a lowly backbencher appear inapt. “It would be a striking paradox,” the circuit reckons, “if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed’ were the sole officer capable of defying those laws with impunity.”

Hold on a second. Whether the president is an officer is precisely the issue in a separate dispute before the Supreme Court. The usage of the word here strikes us as a tipping of the political hand, which we also detect in the court’s absolutely astounding remarks in respect of impeachment. This comes up in respect of the Impeachment Judgement Clause, which gives — in the view of some — immunity to presidents who are acquitted in an impeachment trial.

As, indeed, was Mr. Trump. Now comes the D.C. Circuit to declare that “as a result of the political nature of impeachment proceedings, impeachment acquittals are often unrelated to factual innocence.” Mr. Trump argues that his acquittal by the Senate of incitement to insurrection means that, under the Impeachment Judgment Clause, he cannot be prosecuted further. That would, he posits, run afoul of the prohibition of Double Jeopardy. 

The notion — from judges who swore an oath to the Constitution — that an acquittal at impeachment is “unrelated to factual innocence” is breathtaking. Mr. Trump was acquitted twice on impeachment. The first trial was presided over by the Chief Justice and the other, after he bowed to the constitutional requirements and left office, by Senator Leahy. The Senators were — and had to be — sworn to do “impartial justice according to the Constitution and laws.” Mr. Trump was discovered to be “not guilty.”

In which case, the Constitution’s plain language does offer Mr. Trump immunity. It says that in an impeachment only the “party convicted” is liable to further trial and punishment after the Senate’s verdict. Mr. Trump wasn’t convicted. For the circuit riders to suggest — without evidence — that the impeachment verdict was flawed puts into question their own fidelity to the parchment. Hence the logic of Supreme Court review.


The New York Sun

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